Noise code change questioned in council

Nov. 28—The Mesa City Council voted last week to set a Dec. 1 hearing date to consider proposed changes to the rules on excessive noise.

While the proposed changes will advance to a hearing, several council members voiced lingering questions in a study session, potentially setting the stage for a debate and maybe even some rare "no" votes.

The fact there were concerns at this stage was noteworthy because Council was considering a second draft of the noise ordinance after members directed Mesa Police officials to work out some issues identified in an earlier session.

Among the concerns voiced in the first session was that the updated code relied heavily on subjective standards. Members worried that could be a hardship for some Mesa businesses when noise complaints arise.

Assistant Chief Ed Wessing told Council the update would still provide more clarity to the community than exists now.

The current code "can be confusing," he said, and "has led to some challenges with actual enforcement, which could lead to prosecution issues."

Wessing and police legal advisor Geoff Balon said subjective judgment is needed to match the complexity of real-world situations officers and neighbors face.

But the reliance on individual judgment in the rules didn't seem to sit entirely well with Councilwoman Julie Spilsbury.

"Can you help us understand what, since we don't have a decibel level or a distance level in our (code), ... how will we know what an officer finds reasonable or unreasonable?" Spilsbury asked. "Depending on the mood that they're in? Or how the neighbors are treating them? ... There's a lot of different factors there."

Wessing replied, "I can't give you a very specific answer because every case is going to be unique. We rely on (officers) to use basically common sense in those factors."

The proposed code is structured as a broad prohibition against nuisance noise according to a "reasonable person," but then spells out a list of specific "factors" responding officers should consider when determining whether a violation is occurring.

The updated ordinance would prohibit "any loud, unnecessary, or unusual sound or noise that disturbs, injures, or endangers the comfort, repose, health, peace, or safety of a reasonable person."

The language covers many bases, but the seven factors to be weighted in each case are more specific: volume and intensity of noise and background noise; proximity to homes; permitted land use; "recurrent, intermittent, or constant;" time of day; whether enhanced by electronic or mechanical; control without unreasonable effort or expense to the creator.

"Could it be one factor (that leads to a violation), or does it have to be three factors, or what?" Spilsbury asked.

"There really isn't a set number. It's based on the situation," Wessing said. "It could just be one factor that sticks out given a circumstance that makes it unreasonable. In some cases, it could be multiple factors that helps the officer make that determination that it is unreasonable."

Balon only seemed to complicate the matter when he added that different factors would have different weights, and these weights would change from situation to situation.

One of the other major code changes also generated concerns. The current code exempts noise arising from "activity permitted under zoning code."

The updated ordinance would make this into a factor to consider rather than exemption.

Spilsbury worried this change might mean a business like a wedding venue would have to change its operating hours if neighbors started complaining about noise at night.

Councilman Kevin Thompson added, "I'm not really comfortable changing the rules midstream. I think there has to be some way to grandfather those types of venues into that ordinance to allow them to continue to operate as they did prior under the old ordinance."

Smith pushed back, saying "They never had sort of a vested right to some sort of broad exemption."

Mayor John Giles moved the council away from the topic, reminding council that there would be an opportunity to discuss the ordinance further Dec 1.

"If we get more community feedback or have additional questions, this is not our last bite at the apple," Giles said.